Kepu v Department of Corrections

[2023] NZHC 3733

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-466

[2023] NZHC 3733

BETWEEN

LATU KEPU

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

5 December 2023

Appearances:

L Ameye for the Appellant

R Thompson for the Respondent

Judgment:

15 December 2023

JUDGMENT OF BECROFT J

[As to appeal against sentence]

This judgment was delivered by me on 15 December 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland L Ameye, Barrister, Auckland

KEPU v DEPARTMENT OF CORRECTIONS [2023] NZHC 3733 [15 December 2023]

The appeal and result

[1]                 Mr Latu Kepu was sentenced to 15 months’ imprisonment by Judge Bonnar KC at the Auckland District Court on 7 September 2023 on three charges of breaching an Extended Supervision Order (ESO).1

[2]The three separate breaches were:

(a)consuming controlled drugs and psychoactive substances without reasonable excuse on 7 February 2023;

(b)failing to reside at an approved address without reasonable excuse on 22 March 2023; and

(c)failing to submit to electronic monitoring and comply with the residential restrictions imposed on him to remain at his approved address between 10 pm and 6 am, on 22 April 2023.

[3]                 He was also disqualified from driving for six months on a charge of failing to stop for the Police on 2 May 2023.2 This was in the context of disconnecting his tracker and absconding on the 22 April 2023 (the third breach, above). Mr Kepu was identified by the Police driving a stolen vehicle. After a short, but dangerous, pursuit he was arrested.

[4]                 Mr Kepu argues that the breaches do not warrant the sentence that was imposed. In particular, he asserts there are three clear errors:

(a)the starting point of 16 months’ imprisonment was too high;

(b)the uplift of a further three months for his previous breaches of Court orders was in error; and

1      Parole Act 2002, ss 107T and 107TA.

2      Land Transport Act 1998, s 52A.

(c)the deduction for the guilty plea of four months (calculated by counsel as constituting a 21 per cent reduction) was inadequate and should have been 25 per cent.

[5]                 As a result of these errors, it is argued that the end sentence was manifestly excessive and cannot stand.

[6]                 I have concluded that there was no error in any of the three steps, as alleged for Mr Kepu. And even if there was, the end sentence, while perhaps stern, was clearly within the available range and was not manifestly excessive.

[7]                 What follows are the detailed reasons for that conclusion. I acknowledge from the outset the very helpful, well prepared, and responsible submissions by Mr Ameye for Mr Kepu and Ms Thompson appearing for the Department of Corrections (the Department). Mr Ameye raised every possible argument available to Mr Kepu.

The background to this offending is important

Interim Supervision Order (ISO)

[8]                 On 12 August 2021, following Mr Kepu’s release from prison for a manslaughter sentence, and following further offending and breaches of his release conditions, the chief executive of the Department of Corrections, applied for an extended supervision order (ESO) and, in the meantime, an interim supervision order (ISO).

[9]                 On 13 October 2022 Peters J imposed the ISO with agreed special conditions. Mr Kepu subsequently breached those conditions (in the first half of 2022) and was charged.

Extended Supervision Order (ESO)

[10]              On 18 August 2022, Fitzgerald J imposed the ESO on Mr Kepu because of his extensive history of violence.3 The order was for a five-year period. Special conditions, as required, were to be subsequently set by the Parole Board.

[11]Relevantly, for the purposes of this appeal, Fitzgerald J concluded:

[55] Taking into account these results, Mr Kepu’s criminal history and his behaviour in prison and in the community since his release, Mr Els [the “health assessor”] considers that Mr Kepu presents a “very high risk” of committing a relevant violent offence in the future. He considers Mr Kepu most likely to offend against male persons who are known or unknown to him, such as those in positions of authority (like law enforcement) or rival gang members if he feels they have wronged him. He notes that Mr Kepu also has another much shorter and more difficult to discern pathway to violence, in that his eventual victims may not see any outward sign that he is about to engage in violence. Mr Els states that factors like antisocial associates and substance abuse may contribute to Mr Kepu’s offending, but they are not required for him to offend.

[12]Fitzgerald J also noted the observations of the health assessor as follows:4

[62] Mr Els considers that Mr Kepu’s PCL-SV and VRS scores, and his behaviour in prison and in the community since his release, indicate poor self- regulatory capacity both generally and in relation to violence. He notes that Mr Kepu spent most of his imprisonment in a high or maximum security setting, and was still being managed in a behavioural management unit just prior to his release, indicating a lack of ability to self-regulate.

[13]              In a footnote to that paragraph, Fitzgerald J notes that Mr Els refers to Mr Kepu’s behaviour since release as engaging in drug use, driving without a licence, breaching his curfew and pushing boundaries with Community Corrections staff despite warnings.

[14]              It is accepted that the ESO will currently expire on 26 March 2028, although I was informed that it will be automatically extended to take into account any period during which he is in custody.

3      Department of Corrections v Kepu [2022] NZHC 2044.

4      Footnote omitted.

Imposition of special conditions of the ESO

[15]              On 9 December 2022 the New Zealand Parole Board (the Board) imposed special conditions for the ESO.

[16]              All of the three conditions breached here were special conditions imposed by the Board. Those special conditions were imposed pursuant to s 15 of the Parole Act 2002. It is accepted by counsel that they were primarily imposed to reduce the risk of violent reoffending by Mr Kepu. They also may have been imposed to promote the rehabilitation and re-integration of Mr Kepu but it is unclear to what extent that ground was relied upon. The Board did say that the condition for electronic monitoring was justified, amongst other reasons, because of “the contribution it will make towards influencing Mr Kepu to restructure his lifestyle as well reducing the situations where his return to violent offending could arise”.

Breach of Interim Supervision Order and sentencing

[17]              On 7 December 2022 Mr Kepu was sentenced by Judge Sharp in the Auckland District Court in respect of four charges of breach of the ISO,5 one charge of threatening to kill and one charge of wilful damage under the Summary Offences Act 1981.

[18]              The ISO had included a special condition for Mr Kepu to submit to electronic monitoring as directed by his Probation Officer.

[19]              The first breach related to his failure to submit to electronic monitoring when his tracker shut down on 12 March. The second charge was a result of Mr Kepu removing his tracker and failing to report to the Auckland Central Police Station for the tracker to be re-attached. He remained unmonitored until his arrest on 12 May 2022 when he was charged, pleaded guilty and granted bail.

5      Judge Sharp refers to the breaches being of an intensive supervision order but I take it he is meaning the interim supervision order.

[20]              On 16 May 2022 consent was withdrawn by his then partner, the occupant of house where he was staying, for him to continue at that address. At the same time his tracker shut down. This was the third charge against him. On the same evening his tracker was tampered with, Mr Kepu became unmonitored, leading to the fourth charge. On 18 May 2022 was arrested in respect of the other Summary Offences Act charges.

[21]              Judge Sharp imposed a final end-sentence of 13 months. The four breach charges were treated as the lead offending. Judge Sharp observed:

[15] The Crown is suggesting an 18 month starting point. Mr Bond has suggested seven months’ starting point. I do consider that the repeated nature of the breach and the fact that it has been for periods of time that it had been relatively significant, notwithstanding that there have not been breaches that directly go to the area that has led the intensive supervision order, do justify a 12 month starting point in terms of that offending.

This offending in detail

[22]              It is agreed that the offending the subject of this appeal is well set out by Judge Bonnar as follows:

[5]        Following your release into the community, in mid-January 2023 you undertook an alcohol and other drug test as required by the supervision order. That returned positive for cannabis, and you were warned about that on 31 January. On 3 February, you were evicted from the Salvation Army property where you had been living, after being found in possession of alcohol and cannabis and after allegedly causing damage to the property. You were relocated to a Mangere motel or hotel.

[6]        On 7 February, you undertook a further alcohol or other drug test which, again, tested positive for cannabis. That gives rise to the first breach charge. In March 2023, you were trespassed from the Holiday Inn, again, for allegedly causing damage and acting aggressively towards staff. You were relocated to another set of apartments in the Auckland Central Business District. Two days later, on 22 March, you were evicted from those apartments for what was considered to be unacceptable behaviour, namely moving property out of the apartment. At that point, you had exhausted all available accommodation options and were unable to provide an alternative address. Instead of reporting to Corrections, you went missing for two days. That gives rise to the second breach, which is failing to live at an address approved by probation.

[7]        In April 2023, you were granted bail to the Grace Foundation in Otahuhu. You were subject to electronic monitoring at that address by virtue of the extended supervision order. On this occasion, you were at large for 10 days before being located on 2 May. On that day, you were driving a motor

vehicle. Police attempted to stop you. They deployed tyre deflation devices. You drove onto the wrong side of the road and drove through a solid red traffic light in order to evade the police. Police followed you and activated red and blue flashing lights, indicating for you to stop. You failed to stop and accelerated away at excessive speed. You did come to a stop eventually and were apprehended. That gives rise to a further police charge of failing to stop when required to do so by police officers displaying red and blue flashing lights.

[8]        You have an extensive history of previous offending, on my count, some 44 previous convictions. A large number of your convictions are for offences of violence which I am not directly concerned with today. They form the background, as I have said, to the extended supervision order being made. However, you do have two previous convictions for breaching community work, two for breaching prison release conditions in 2021 and, of course, the three breaches of the interim supervision order which were committed by you in March and May of 2022 to which I have already referred and on which you received a sentence of 13 months’ imprisonment.

Judge Bonnar’s decision

[23]              Clearly, the Judge was satisfied that the three breaches together with the background matters were linked to the risk of serious violent offending which gave rise to the ESO. He adopted a starting point of 16 months’ imprisonment, footnoting several relevant decisions that he had considered.6

[24]              From that starting point, his Honour applied an uplift of three months’ imprisonment to reflect Mr Kepu’s history of continual disregard for court orders and sentences, and that the most recent breach involved a breach of bail. He acknowledged, as submitted by Mr Kepu’s then-lawyer, that in these sentencing exercises the offender’s previous breach history was to some extent “baked in” to the starting point. In so doing Judge Bonnar was, in effect, careful to ensure that the uplift was not for Mr Kepu’s previous offending but was specifically for previous and continual breaches of court orders – including, by clear implication, the recent ISO breaches.

[25]              Finally, his Honour applied a discount of four months’ imprisonment for Mr Kepu’s guilty pleas. Counsel agree that this equates to slightly over 20 per cent.

6      Pearce v Dept of Corrections [2022] NZHC 1826; McCreevy v Dept of Corrections HC Christchurch CRI-2009-409-207 17 December 2009; Williams v Dept of Corrections [2012] NZHC 304; Williamson v Department of Corrections [2014] NZHC 98; and Police v Kepu [2022] NZDC 26157. These are the same decisions referred to by Judge Sharp in his sentencing and cited by counsel in this appeal.

[26]This resulted in an end sentence of 15 months’ imprisonment.

Legal principles on appeal

[27]              Under the Criminal Procedure Act 2011, a person may bring an appeal against sentence.7 The Court hearing the appeal must allow it if satisfied that:8

(a)there is an error in the sentence imposed upon conviction; and

(b)a different sentence should be imposed.

[28]In any other instance, the Court must dismiss the appeal.9

[29]              An appeal will be successful only if the appellant can point to a plain error, either intrinsic to the judge’s reasoning, or as a result of additional material submitted on appeal, which vitiates the sentencing decision of the Court below.10

[30]              Unless there is a material error in the sentence —for example, if it is manifestly excessive, wrong in principle, or incorrectly calculated by the Judge’s own arithmetic—the appellate court will not intervene.11 It is not a second chance at sentencing.12

[31]              The focus is ultimately on whether the end sentence is within the available range, rather than the process by which it was reached.13 The end sentence should reflect the overall criminality of the offending and the offender.14 Appellate courts do not interfere with the legitimate exercise of the judicial discretion or indulge in mere “tinkering” with the sentence.

[32]I now turn to the argument on appeal ably presented by Mr Ameye.

7      Criminal Procedure Act 2011, s 244.

8      Section 250(2).

9      Section 250(3).

10     R v Shipton [2007] 2 NZLR 218 (CA).

11     Te Aho v R [2013] NZCA 47 at [30].

12     Polyanszky v R ]2011] NZCA 4 at [17].

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

14     Leather v R [2011] NZCA 59 at [32].

Was the starting point too high?

[33]It is necessary to examine the three breaches in detail.

The consumption of cannabis breach

[34]              As set out in Judge Bonnar’s decision, on 17 February 2023 Mr Kepu undertook an alcohol and other drugs test (AOD). The test was positive for cannabis and phentermine (a component of his Duromine prescription). On 31 January 2023 he was issued a written warning for the consumption of cannabis.

[35]              On 7 February 2023 he undertook a further AOD test, which on 10 February again proved positive for cannabis and phentermine. He was charged in respect of the cannabis consumption as a breach of his ESO.

[36]              Given the comments of the health assessor, recorded in Fitzgerald J’s decision which I have set out earlier at paragraphs [11] and [12] of this decision, this breach of the ESO is clearly linked to an increased likelihood of violence.

The breach of residence condition

[37]              Again, this was not one single breach. Mr Kepu had been given previous latitude. On 3 February he was evicted from an Epsom Salvation Army house for breaching rules as to having alcohol and drugs on the premises. On 20 March he was trespassed from his new accommodation for acting aggressively and being hostile to staff. On 22 March 2023 he was evicted from his new residential address. He was then remanded in custody and charged for the residence breach.

Detaching tracking device and fleeing the Police

[38]              On 20 April 2023 he was placed on EM bail with the Grace Foundation in Otahuhu. It was short-lived. On 22 April a strap tamper alert was received by the monitor. Mr Kepu abandoned his tracker. It was found. Mr Kepu had absconded. He was on the run until 10 days later when he was identified driving a stolen car, which had incorrect registration plates. This was at 5.41pm. The Department now advises the car was valued at $80,000. The police activated their red and blue flashing lights. Mr

Kepu accelerated away at speed in suburban Auckland. There was a short pursuit. He drove on the wrong side of the road and ran a red light. Tyre deflation devices were employed. He stopped at a petrol station and was apparently arrested without incident. On any analysis this was clearly a very dangerous situation.

Assessment of the breaches

[39]Those three breaches are far from insignificant:

(a)Though the breach of accommodation is the least directly connected to the index violent offending justifying the ESO, it is part of a pattern involving some aggression and hostility to the accommodation providers.

(b)The cannabis consumption, twice in a short period, is concerning because it is made clear by the Health Assessor, whose evidence supported the ESO, that cannabis may be associated with his violent offending.

(c)Removal of the electronic monitoring device and attempts to evade the Police in a pursuit, is precisely the sort of situation that would put him at risk of violent offending and is the most directly related to the index offending: see paragraphs [11] and [12] of this decision. This is a very concerning breach. There could have been very serious, if not tragic consequences, particularly as it was on a Tuesday in the late afternoon when it can be assumed there was peak-time traffic and pedestrians in the vicinity.

Relevant cases

[40]              The cases relied on appeal are all those discussed previously by Judge Sharp and Judge Bonnar. I highlight the following.

[41]              In Pearce v Department of Corrections,15 10 months’ imprisonment for two breaches of ESO conditions was reduced on appeal to five months. The breach related to a curfew at his accommodation at a lodge. The other breach related to prohibition of alcohol consumption.

[42]              The appellant in Pearce had 32 previous convictions for breaching his ESO. His most recent sentence was nine months. In that case it seemed the appellant had valid concerns for his safety. He did not remove his tracker and took steps to keep the Department of Corrections appraised of his situation. The District Court Judge referred to many of the cases raised on this appeal.

[43]              On appeal, Eaton J found the Mr Pearce’s breaches fell within a passive category of ESO breaches that were not directly related to the offending for which the ESO was imposed. A starting point of no more than seven months was considered appropriate. Mr Kepu’s offending is much more serious.

[44]              In Brown v Department of Corrections,16 the ESO was imposed in respect of sexual offending on a girl under 12. The appellant breached his ESO conditions three times by deliberately having contact with young girls albeit in legitimate circumstances. The appellant was always in the company of other adults. However, the appellant was intentional and exhibited preparatory grooming-type behaviour.

[45]              A 12-month starting point was adopted. It was considered appropriate and within range. The breaches related directly to the outcome the ESO intended to discourage.

[46]              In my view the offending here, in its own way and given the collective nature of Mr Kepu’s breaches, was roughly on a par with Brown. Given the circumstances of the third beach charge, it is perhaps more serious.

15     Pearce v Department of Corrections, above n 6.

16     Brown v Department of Corrections [2021] NZHC 3382.

[47]              In Williamson v Department of Corrections there were three charges of breaching an ESO.17 The ESO was imposed after imprisonment for possessing objectionable material and a history of sexual offending against young girls. The appellant’s breaches consisted of failing to obtain written approval prior to commencing employment; entering a recreational area where children were likely to congregate; and being in possession of devices capable of accessing the internet and/or capturing, storing, accessing or distributing images.

[48]              In respect of the first two breaches, the District Court Judge imposed cumulative starting points, each of eight months’ imprisonment. For the third breach, there was nine months’ imprisonment, again cumulative. The eventual end sentence of 21 months’ imprisonment was reduced to 18 months on appeal.

[49]              In Williams v Department of Corrections there were five breaches of an ESO imposed because of earlier sexual offending.18 The breaches included entering a woman’s shower block at a holiday park, or attempting to look through a window, or approaching the shower block. A starting point of 18 months’ imprisonment in the District Court was upheld on appeal. That case was more serious than this.

[50]              In McGreevy v Department of Corrections,19 there was one breach of an ESO where the appellant left his authorised residence for about an hour and 50 minutes before being apprehended by Police. He had three previous convictions. The six months’ imprisonment sentence was considered within range. Like Pearce, before, that was much less serious offending than here.

[51]              All these cases lead me to the inescapable view that the starting point of 16 months’ imprisonment could possibly be considered stern, but certainly not outside the range. This is especially so given that Judge Sharp took a 12-month starting point in his sentencing for the four breaches of the ISO 10 months earlier. Judge Bonnar could hardly start at a lower level.

17     Williamson v Department of Corrections, above n 6.

18     Williams v Department of Corrections, above n 6.

19     McGreevy v Department of Corrections (HC) Christchurch CRI-2009-409-207, 17 December 2009.

Was the three-month uplift in error?

[52]              It is well accepted that uplifts are at the discretion of the sentencing judge and should be modest. Here, given the four previous breaches of the interim supervision order and two past breaches of standard/release conditions from prison, an uplift cannot be said to be unjustified. The three months was modest and within range. There is no error here.

Was the allowance for the guilty plea insufficient?

[53]              A discount of four months, or in the Judge’s words “slightly over 20 per cent”, was allowed for Mr Kepu’s guilty pleas. In fact, the 20 per cent should have been deducted from the starting point of 16 months, not the adjusted starting point of 19 months. So it is, that Mr Kepu actually received a greater discount for a guilty plea than he was perhaps entitled to. Either way, the discount was again within range. There is no obvious error. Some Judges may have given the full 25 per cent reduction, even though the pleas were not at the first available opportunity but were entered very soon after it became clear that EM bail was not an option for Mr Kepu. That other Judges might have done so does not make the reduction here inadequate. It just shows that there is a range within which Judge Bonnar’s reduction appropriately fell.

Was the end sentence manifestly excessive?

[54]              The end sentence was 15 months’ imprisonment. This could not be said to be excessive. It properly focusses on the offending. In my view it was fair.

[55]              I add that it was clearly in Judge Bonnar’s mind, as it is in mine, that while an ESO is not a sentence for specific offences, it is imposed to protect the public from those who pose a real and ongoing risk of committing (here) serious violent offences in the future. It is not imposed lightly, and only after a rigorous and complex process involving expert evidence. The Courts must take such breaches seriously. Put another way, the integrity of an ESO must be upheld. This sentence does exactly that.

[56]              I have some sympathy for Mr Ameye when he says that his client is probably likely to breach his ESO in the future, particularly given that there are at least five more years for it to run. Mr Ameye’s point is that with a maximum sentence of two years available for each breach, it may be thought that Mr Kepu will soon run out of what might be called “sentencing runway” if the sentence imposed here was upheld.

[57]              I understand his submission. But it cannot be a sentencing principle that the likelihood of future breaches can reduce this properly imposed sentence.

[58]The appeal against the sentence is dismissed.

Becroft J